April 18, 2018
In Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV  EUECJ C-414/16, the Grand Chamber has reaffirmed that where religion or belief organisations impose a Genuine Occupational Requirement when recruiting staff, that requirement must be both genuine, legitimate and justifiable.
Ms Egenberger had applied to an auxiliary organisation of the Evangelische Kirche in Deutschland [EKD] for a post involving the preparation of a report on Germany’s compliance with the UN International Convention on the Elimination of All Forms of Racial Discrimination. The duties also included public and professional representation. The advertisement restricted applications to Protestant Christians; and when she failed to get the job, she lodged a claim with the Labour Courts that she had been rejected because she did not belong to any religious community and that she had been discriminated against on the basis of belief. The Federal Labour Court submitted a series of questions to the Court of Justice for an advisory opinion on the application to the case of Directive 2000/78/EC – the Equal Treatment Directive.
In response, the Grand Chamber ruled that the right to autonomy of Churches and religion or belief organisations had to balanced fairly with the right of workers not to be discriminated against on grounds of religion or belief – including during the recruitment process. Therefore, any requirement about the religion of applicants had to be a genuine, legitimate and justified occupational requirement for the post, having regard to the ethos of the church (or organisation) in question – and whether or not such a condition of employment satisfied those criteria was reviewable by the courts, case by case.
So far as possible, it was for the national courts to interpret the national law transposing the Directive in conformity with the Directive itself. But if it proved impossible to do so, a national court hearing a dispute between two individuals would have to disapply the national law. Because the EU Charter of Fundamental Rights applied to such cases, the national court had to enforce the mandatory prohibition of discrimination on grounds of religion or belief under Article 21 and the right to effective judicial protection under Article 47. Both gave claimants an enforceable right in disputes with other individuals in a field covered by EU law.
[There is a longer note on the Law & Religion UK blog, here]